February 6, 2008

More detail on the US Pardon Attorney scandal

This new AP story, headlined "Pardon Attorney Moved After Racism Claim," provides more details on the ugliness in the Office of the US Pardon Attorney. Here are excerpts:

The Justice Department attorney responsible for recommending presidential pardons has been transferred out of his office following accusations of mismanagement and racism.

Roger Adams, who served as the government's pardon attorney for over a decade, told internal Justice Department investigators he probably has "some faults, but racial prejudice is not one of them." But the department's inspector general concluded otherwise, finding that Adams acted improperly in describing a drug convict applying for a pardon as "about as honest as you could expect for a Nigerian." "Unfortunately, that's not very honest," Adams allegedly told a co-worker, according to the inspector general's December 2007 report.

The inspector general's office said it did not find reason to doubt the accuracy of the statement after its own interview with Adams. "We believe that Adams' comments — and his use of nationality in the decision-making process — were inappropriate," the report concluded. "We were extremely troubled by Adams' belief that an applicant's 'ethnic background' was something that should be an 'important consideration' in a pardon decision."

The investigation also concluded that Adams threatened to transfer or otherwise retaliate against staffers who complained about his management style to the inspector general, which is the Justice Department's internal watchdog.... Adams recently left his post as pardon attorney voluntarily and now works in the general counsel's office at the Justice Department's management division, agency spokesman Erik Ablin said Tuesday in a statement....

The inspector general's report describes a poisonous work environment — apparently felt by both Adams and his staff — in the pardon attorney's office. The heavily edited report was spurred by complaints in June 2007 from unnamed Justice employees, some of whom apparently kept notes over the years detailing conversations they had with Adams.

It should not be overlooked — indeed, I think it should be stressed — that Adams became the US Pardon Attorney during the Clinton Administration and was serving in this role at the time of President Bill Clinton's troublesome set of last day pardons. Reports were that President Clinton completely circumvented the Pardon Office when issuing his last-day pardons, though I suspect the subsequent brouhaha over the Clinton pardons surely impacted the environment and day-to-day work of that office even as the White House changed hands.

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Point well taken. Adams was not an invention of the Bush administration. I think it is kind of fun and interesting though to go back and look at some of his testimony and media appearances in light of these events. See, for example, the Christian Science Monitor's December 1999 article entitled "Inside the Decline in Christmas Clemency." It has several oddities in it and Adams seems to have been the point person for it.

If the former Pardon Attorney actually believed, as the IG concluded, that "an applicant's 'ethnic background' was something that should be an 'important consideration' in a pardon decision," what are the chances that this sort of thinking effected a single pardon case? Doesn't it seriously undermine the basic integrity of the entire program? I think this is a far more important part of the story than the sheer number of cases the office managed to process.

“There are valid reasons for concluding that even if due process is required in clemency proceedings, only the most basic elements of fair procedure are required. Presumably a State might eliminate this aspect of capital sentencing entirely, and it unquestionably may allow the executive virtually unfettered discretion in determining the merits of appeals for mercy. Nevertheless, there are equally valid reasons for concluding that these proceedings are not entirely exempt from judicial review. I think, for example, that no one would contend that a Governor could ignore the commands of the Equal Protection Clause and use race, religion, or political affiliation as a standard for granting or denying clemency. Our cases also support the conclusion that if a State adopts a clemency procedure as an integral part of its system for finally determining whether to deprive a person of life, that procedure must comport with the Due Process Clause.”

I appreciate that Woodard is a state clemency case, but the issue, I think, is no different in a federal clemency proceeding. And while there is no allegation that Bush used improper racial considerations, the Pardon Attorney does act at the president’s direction.

Posted by: anon | Feb 6, 2008 11:56:51 AM

While it sounds like Adams needed to move on for a number of reasons, I'm not sure that the charge of racism is fair; his reference to the convict as a citizen of a nation well known as an international center for scamming and con operations sounds more like prejudice on the basis of nationality rather than race or ethnicity.

Posted by: anon | Feb 6, 2008 12:57:20 PM

>no one would contend that a Governor could ignore the commands of the Equal Protection Clause and use race, religion, or political affiliation as a standard for granting or denying clemency.

Well, first, it is not likely that any of those things would be explicity asserted as the standard in a clemency decision. Second, it seems quite plausible / possible that all of those things could very well be partial considerations in a clemency decision. So, where are we?

First, Adams himself admitted that "ethnic background" (not nationality as such) was in some sense an "important consideration" in deciding a pardon case. So, there is no dispute that he took that factor into consideration. Whether it is "explicitly" asserted as the basis for a clemency recommendation is thus beside the point. The only remaining question is what "plausible" relevance that could have. Perhaps others can explain how that could be the case, but I can't. Why is it relevant that a pardon applicant is black? or Nigerian? Would anyone seriously suggest that Nigerians, on average, are inherently less trustworthy (or more likely to recidivate, or whatever) than, say, the typical white American felon?

Posted by: anon | Feb 6, 2008 1:38:32 PM

First, I do not believe it is correct to say that Adams has admitted to anything. His 22-page response is a document of firm denial.

Second, my lastpost was speaking in general terms, in reaction to general idea expressed in the Supreme Court quote.

Third, now that I think about it ... I can think of several situations where race was asserted in public explanations for clemency decisions. Woodrow Wilson, for example, commuted the sentences of several African-Americans in the aftermath of the Houston Riot, in part, to inspire other African-Americans to service in the Great War. There, race was not used as a negative, but it was clearly a factor in the decision making. Wilson also once commuted the death sentence of a female in order to avoid the "spectacle" of a woman being executed. There have certainly been many acts of clemency which featured explanations that focued on religion. But I bet the Satanic Church is not well represented in the bunch. So, again, generally, where are we with respect to the general sense of the Supreme Court quote?

I should also point out, in response to 12:57:20 PM, that the article states the pardon applicant in question was convicted of a drug offense, not a fraud offense. Without knowing more, it’s hard to tell, of course, but at least on the face of it, the applicant’s veracity should be compared to other drug offenders. If we’re comparing apple-to-apples, I fail to see the relevance of the applicant’s ethnic background.

To see this clearly, imagine that the applicant was before a district court for sentencing, and some factual issue had to be decided, i.e., the amount of drugs for which he should be held responsible. Suppose the defendant asserted that he knew about X amount, but the judge responded (perhaps only to his law clerk), “Well, everyone knows that Nigerians are notorious liars.” The court then finds the defendant responsible for Y amount and sentences him accordingly. If those were the admitted facts, is there any doubt that the court’s decision would be dubious at best?

My point is simply that each person should be judged as an individual, on the facts of his or her case. If a particular person is enmeshed in the Nigerian culture of scams, then so be it; if so, that might be a reason to doubt his veracity, but that would have nothing to do with his ethnic background as such.

But it can never be morally acceptable for public officials to make important decisions about a person’s life based on hasty generalizations about the ethnic group to which he or she happens to belong. That, it seems to me, is the definition of racism.

Posted by: anon | Feb 6, 2008 2:36:34 PM

Prof. Ruckman, you should read the article again. Adams is quoted as saying that he thinks an applicant's "ethnic background" is an "important consideration" in making a pardon decision. Those are his words, not mine, which is all I said. To be sure, Adams does go on to deny that he has racist attitudes. If you buy that, then you're more credulous than me.

Second, the mere fact that past clemency decisions (in the early 20th century no less) were expressly based, at least in part, on racial or sexist considerations is hardly relevant to the normative question.

Finally, there is an obvious difference between acknowledging the realities of race or sex in a way that does not prejudice the applicant, and using race or sex in an invidious way. A more recent example of the former phenomenon would be Pres. Clinton's posthumous pardon of Lt. Henry Flipper, which was intended to send a message about the evils of racism. If that's all you meant, then I happliy concede the point. Unfortunately, that isn't what seems to have happended in the case under discussion.

Posted by: anon | Feb 6, 2008 2:51:16 PM

With all due respect, Anon, you should read the article again yourself.

The REPORT asserts: "We believe that Adams' comments — and his use of nationality in the decision-making process — were inappropriate. We were extremely troubled by Adams' belief that an applicant's 'ethnic background' was something that should be an 'important consideration' in a pardon decision."

Adams, however, very clearly DISPUTES this charge and has admitted nothing: "Adams said he was particularly troubled by the accusation that he used race or ethnic origin as a factor in deciding whether to recommend a pardon ... As any person who has known me for any length of time will attest, I am neither racially biased nor insensitive."

I don't think the distinction between benign and invidious discrimination are nearly so clear as you would suggest - I think that is exactly why Supreme Court justices have spent so much time arguing about it. And, besides, the Flipper example is really, really old (an entire administration ago) and irrelevant. Race was a factor in his being charged. In the examples I mentioned race and gender were used as justifications for clemency decisions. You may recall that was the circumstance that was under discussion.

Sorry, Prof. Ruckman, but you're missing the point. The IG's report clearly states that those were Adams's words. He disputes the import of those words, as I acknowledged, but that's what he said when he was interviewed by the IG.

Further, I think the injunction against the invidious use of racial stereotypes is no more vauge that any other moral principle, and is the only plausible way that they could be thought to "ignore the commands of the Equal Protection Clause," as Justice Stevens put it.

Finally, I don't really follow your point about Flipper. You were the one who raised two grants made by Pres. Wilson nearly 100 years ago, presumably as relevant examples of the "positive" use of gender and racial considerations. The Flipper grant was in 1999. Moreover, while race certainly was a factor in his being convicted (in the late 19th century), the entire point of Clinton's grant was to symbolically "correct" that injustice. How is that not relevant to your point about the "positive" consideration of race?

Posted by: anon | Feb 6, 2008 3:35:18 PM

Look, you are free to believe any accusation that you like. Go for it. But I can't go along with all of the semantic acrobatics. The only thing that is "clear" is that Adams denies what is in the report. In addition, the report, as reported here, does not (despite your eagerness) provide a single quote of "what he said" to the IG. And it appears you cannot produce such a quote. I think the most reasonable reading of the passage, in context, is that you are only reading what the report says someone else says that Adams said. And he denies it. Just that simple.

I was not raising examples as "positive" use. I was raising them as examples of use period. Recall, the Supreme Court quote was: "no one would contend that a Governor could ignore the commands of the Equal Protection Clause and use race, religion, or political affiliation as a standard for granting or denying clemency." Note that the word "positive" is nowhere in the quote. The focus was the mere use of these considerations. Let me know if you understand the difference between what you call "positive" use of race (or gender) and any use of race (or gender)at all. And please, this time, stick to the topic of clemency decisions, not racial (or gender discrimination)at trial or at sentencing. That might be the wall between us.

Mea culpa, professor. I thought you could follow the use of analogy. Apparently not. In any event, we can settle what Adams said quite easily. Just get a copy of the report from the IG under FOIA and, if that's not good enough for you, get a copy of the transcript of his interview.

Posted by: anon | Feb 6, 2008 4:19:20 PM

Yes, my many failings are apparent. Feel free to produce those direct quotes (from Adams to the IG) whenever.